State v Bino [2009] PGNC 150; N3769 (9 October 2009)

N3769

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 459 OF 2007

STATE

V.

SAMSON BINO

Lae: Manuhu, J.
2009: 6, 7 & 9 October

CRIMINAL LAW – Particular offence – Sexual penetration of a child under 16 years – Victim is wife’s sister and lived with accused for 2 years – Relationship of trust, authority and dependency – Consideration of the evidence against elements of the offence.

Case cited:

Browne -v- Dunn [1894] 6 R. 67 H.L.

Counsel:

T. Ai & N. Lipai, for the State.
S. Toggo, for the Accused.

9 October, 2009

1. MANUHU, J.: The accused, Samson Bino, is charged with sexual penetration of a child under the age of 16 years and there was an existing relationship of trust, authority and dependency. The charge is laid under section 229A (1) and (3) of the Criminal Code.

2. The accused pleaded not guilty to the charge. The victim says in her evidence that her date of birth is 28 September 1995. She would be 11 years 4 months old at the time of the offence. The victim is the accused person’s sister in law. The accused person’s wife is the victim’s sister. She was taken over from her village in East Sepik to live with the accused and his family in 2005 and had been with them until the alleged offence. They lived in a rented home at Kamkumung Block in Lae. She did Grade 3 in 2005 and Grade 4 in 2006.

3. The alleged offence took place on Sunday 28 January 2007 between 3.00pm and 4.00pm. The victim had just returned from holidays with her aunt, Anita Tanis, at Tent City, Lae, and was tired. The next day would be the first day of school in 2007. She was to do her Grade 5. She was having a nap in the living room. There was no one else in the house. She then felt somebody carried her up and when she opened her eyes, she saw the accused.

4. The accused carried her into the bedroom and laid her on the bed. He undressed her and undressed himself. He then sexually penetrated her with his penis and had sexual intercourse with her in that manner until he realized the victim could not bear the pain. The accused got off and told the victim to have her shower. When the victim got up, she saw milky white substance on the bed. She proceeded to have her shower.

5. The victim did not tell her sister that day about the sexual assault. She had been threatened by the accused. She went to school the next day determined to report the matter. After school, she proceeded to Tent City to see her aunt. She reported the matter and it was eventually reported to Tent City Police. The accused was eventually arrested and charged.

6. The defence version of events is a long story but most of them are not relevant. What matters most, as far as the accused is concerned, is that between 3:00pm and 4:00pm, at which time the alleged offence was committed, the victim was at Eriku with her sister. She was not at the house at Kamkumung Block. While the victim was at Eriku, the accused was at the house. His mother was also in the house weaving her bilum. She was also watching over the baby. Jane, Lina and other girls were there too. This story was supported by the victim’s sister and wife of the accused, Rebecca Tanis.

7. As I have mentioned, many stories were told from both sides about whether the alleged offence took place or not. But the evidence that matter most are those that are relevant to the elements of the alleged crime. I propose to consider the evidence in conjunction with the elements of the crime. Accordingly, the issues of fact for consideration are:

- Whether the victim was sexually penetrated?

- Who was the offender?

- Was the victim under the age of 16 years?

- Was there a relationship of trust, authority and dependency?

8. Was the victim sexually penetrated? The victim has given evidence that she was sexually penetrated. She was sexually penetrated by a man inserting his penis into her vagina. Her evidence is supported by medical evidence. The Health Extension Officer (HEO) who made the report testified in Court. The HEO had been told that the victim was "raped" on 28 January 2007. Medical examination was carried out on 6 February 2007. It was determined that the victim’s hymen was absent. Sperm could not be found because of lapse of time and any sperm cell would have died. The victim’s vagina could accommodate two fingers. The HEO concluded that the findings were consistent with sexual penetration as alleged.

9. The HEO is not related to the accused or the victim. He has no interest in the outcome of the case. His evidence is independent evidence. It corroborates the victim’s evidence that she was sexually penetrated. There is no suggestion or evidence that the HEO conspired with the victim and her relatives to make a false allegation against the accused. In the circumstances, I am satisfied beyond reasonable doubt that the victim was sexually penetrated by a man with his penis.

10. Who is the offender? The victim was sexually penetrated and someone is responsible for it. The victim points her finger at the accused. The accused denies it. No one else witnessed the sexual assault. I have to decide whether to believe the victim or the accused and his wife.

11. At the outset, the question that bothers me is: why would the victim, 11 years old at that time, who was well cared for by the accused and his wife, turn around and make a very serious allegation and expose the accused to the possibility of a jail term for a long time, which would in turn affect the lives of her sister Rebecca and the children? The same question was put to Rebecca who could not offer an explanation.

12. I have considered the accused person’s evidence in search for a motive for the victim to fabricate the allegation but I couldn’t work out why the victim would make such a serious allegation. She would have complained to the accused and his sister if someone else is responsible for the sexual assault. The relatives’ disapproval of Rebecca’s marriage to the accused, which is denied, does not appear to me to be compelling enough to force an 11 year old girl to make up a story against her guardian brother in law who was nice and close to her. The suggestion that the victim was afraid the accused might beat her up for coming home late at night and for losing her exercise books is not supported by evidence and is nonetheless not compelling enough to drive an 11 year old girl into fabricating an allegation.

13. In my considered view, the only reason the victim, who was only a child then, was able to make this very serious allegation against her guardian brother in law, and has maintained the same allegation over the last two years, is because she was sexually penetrated by him with his penis.

14. The accused is an intelligent man. He could have said something during the conduct of the record of interview but he chose not to. It is his right to remain silent but it would be to his credit if he had simply told police that between 3:00pm and 4:00pm on 28 January 2009, the victim was at Eriku and not at the house in Kamkumung. Better still, he could have told police that he did not sexually assault the victim.

15. I have observed his demeanor and I am not impressed. He took his time, gave selected answers and spiced up his story with unnecessary suggestions and details. The crime took place on 28 January 2007 and the victim did not return to the house on 29 January. The accused conveniently moved the date a week forward. He then says the victim was at Eriku between 3:00pm and 4:00pm on 28 January but, to be on the safe side, he conveniently says other people were with him in the house.

16. Rebecca was in a dilemma. She had to decide whether to support her sister or her husband. She chose to support her husband and lied in the process. The accused and Rebecca have not given any evidence that would explain the clear findings of sexual assault in the medical report.

17. The defence also failed to follow the rule in Brown v Dunn [1894] 6 R. 67 H.L. Defence counsel in cross examination asked a lot of questions on where and what Rebecca, the accused person’s mother, Lina and Jane were doing on 28 January 2007. All of these persons did not commit the offence. The accused is the one being accused of committing the alleged offence. Unfortunately, whatever he was doing and wherever he was at the relevant time were never put to the victim.

18. I’m not a fan of technical rules but the rule in Brown v Dunn serves the useful purpose of ensuring that the trial is conducted fairly. Accordingly, I was not impressed that no questions were put to the victim in relation to where the accused was and what he was doing at the relevant time. It gives me a negative impression of the accused and his evidence. You cannot fairly and effectively discredit the opposing party’s case by not confronting him with your own case. Where the accused might have been and what he might have been doing at the relevant time is crucial to his defence. As the prosecution’s case concluded, I did not have a clue as to where and what the accused was doing at the time in question.

19. The accused person’s name is also contained in the police occurrence book. Reference to the accused is also made in the medical evidence. The victim named the accused in her statement. After about 2 years, the victim has maintained her accusation against the accused in Court. No other men have been implicated. And I am not going to accept the wild suggestion that the victim, by coming home late, could have seen a man. Similarly, I am not going to accept the suggestion that the victim is personally responsible for the loss of her hymen.

20. In all the circumstances, I am satisfied beyond reasonable doubt that the accused was the offender. It was him who sexually penetrated the victim in the bedroom of their family home at Kamkumung on 28 January 2007.

21. Was the victim under the age of 16 years? The victim was born on 28 September 1995. She was about to do her Grade 5 when this incident took place. I have had the benefit of seeing her in the witness box. From the evidence, I am satisfied beyond reasonable doubt that the victim was under the age of 16 years on 28 January 2007.

22. Was there a relationship of trust, authority and dependency? The victim is the accused person’s sister in law. She was taken from the village to live with the accused and his family in Lae. She had been with them for two years. The accused knows he is responsible for the well being of the victim. The victim must have viewed the accused as father. I am satisfied beyond reasonable doubt, therefore, that there was a relationship of trust, authority and dependency.

23. I am ultimately satisfied that the prosecution has established all the elements of the charge beyond reasonable doubt. I find the accused guilty as charged.

__________________________________________

Jim W Tamate, Acting Public Prosecutor: Lawyer for the State
Daniels & Associates Lawyers: Lawyer for the Accused